If,
following the previous installment of my response, I am right that central
aspects of our constitutionalism are not, as is often assumed, inexorable
byproducts of the Constitution, but
instead are an optional set of practices that have grown up around it, then—as
several readers note—that surely holds implications for debates over
constitutional originalism. But it is not obvious what those implications are, and,
as both Jack Balkin and William Baude indicate, they could vary (and perhaps
dramatically) depending upon which kind of originalist one is. Through
constructive engagement with my work, each of them identifies different reasons
why (at least some) forms of originalism are compatible with my account of the
Founding. Even if one accepts their well-reasoned arguments, though, I think many
originalists would have difficulty accepting some of what Balkin and Baude
point to, at least not without revising longstanding commitments.

Balkin concedes
that originalists’ unifying precept—that the original meaning of the
Constitution was fixed at the time of adoption—“presumes a particular vision of
what the Constitution is and how it operates” and he seems persuaded that this
vision was not entrenched in the earliest years of the document’s existence.
This fact, though, presents little concern for most originalists, he argues,
since they can still believe that the purpose of interpretation is to recover
original meaning even if the supporting theory was not in place at the Founding.
This is partly because we are not beholden to the intentions or expectations of
the Founding generation and partly because it can take time to understand the
nature of what people have created. But, according to Balkin, it really comes
down to a historicist argument—one the initially focuses on interpretive method
but eventually spills over to the fixation thesis itself. As he write, originalists
argue for this thesis on the basis of “a historical practice of reading the
Constitution.” That is, originalists treat constitutional meaning as fixed not
because the Constitution demands it, or because it is in the nature of
interpretation, but because “of a living
interpretive tradition.” If I am reading Balkin correctly, he seems to
agree that originalism is a non-necessary way of thinking about the
Constitution that only applies “because of the history of a particular set of
rhetorical practices organized around American law and American constitutions.”
Had a different set of practices emerged from the 1790s or later, a wholly
different way of thinking about the Constitution might have proved natural. In
this regard, originalism is not a logical byproduct of the kind of thing that
the Constitution is. Instead, originalism is the logical byproduct of a
historically-contingent way of imagining and arguing about the Constitution. Balkin’s
historicist account indeed compliments my portrayal of the Founding.

But I suspect
most originalists would have difficulty accepting Balkin’s description. While
originalists are often fond of saying that their theory is based on certain
normative commitments—to popular sovereignty, to supermajoritarian rule, to
particular conceptions of justice, to judicial constraint—most forms of
originalism really begin as theories of what the Constitution itself actually
is. Whereas other theories get caught up in what the Constitution ought to be, originalism instead respects
the Constitution for what it is. As
Baude suggests, effectively summarizing what many originalists think, it is
“just in the nature of things that writing down constitutional principles would
result in a fixed Constitution that should be interpreted using originalism.”
Accepting the historicist point would mean recognizing that it is not, in fact,
in the “nature of things” that writing constitutions down results in a particular
kind of fixity; it would mean recognizing that it is only because of a
contingent set of constitutional habits and practices that we find that train
of reasoning logical to begin with. This is where the Founding generation comes
in. Irrespective of whether we are beholden to their specific intentions or
expectations, we might nonetheless conceive of the Constitution in a particular
way, not because of anything essential to the Constitution, but because of
practices they contingently initiated. If nothing about the Constitution ever
required us to treat it as distinctively written, and thus fixed in a certain
way, if we only do so because of a non-essential set of habituated practices, then
why must we continue to talk and think that way? Constitutional fidelity would
not seemingly require it.

Balkin seems
to agree that we don’t have to. Nothing absolutely necessitates our practices,
he suggests. Their legitimacy instead derives from the fact that they are part
of our living tradition that we
sanction through continued usage.

This
could be where Balkin and many other originalists might part ways. Ever since
he unveiled his pathbreaking theory of living originalism, Balkin tethered
originalism to a narrative of redemption, to an account of how the Constitution
could be redeemed over time as our law. In this regard, his arguments in this
symposium strike me as as a logical extension of his longstanding commitments.
But most other originalists, by contrast, remain committed to a narrative of
restoration, to an account of how the Constitution can be restored to what it
has always been. These originalists would, it seems, be much less eager, let
alone willing, to accept Balkin’s historicist account of the origins and
development of constitutional practice. I imagine they would still insist that
the Constitution is a text because it’s a text and that it’s fixed in a
particular way because that’s the only way a constitution could be fixed. The
Constitution just is these things no
matter what anybody thinks about it. If what I have argued in my book is
correct, then I would think these originalists would either have to explain why
their particular understanding of constitutional text and fixity automatically
inhered in the Constitution from the start (regardless of what practices or
assumptions initially surrounded it) or they would have to offer a new set of
justifications explaining why the Constitution today should be treated as a
particular kind of object with a particular set of attributes even if, in fact,
it was never necessary to see it that way at all.

In his
characteristically sharp and insightful response, Baude adopts a different
perspective, specifically considering if my historical account poses problems
for original law originalism—the version of the theory that he and Stephen
Sachs have pioneered. Full answers will have to wait for more detailed work,
Baude reports, but in the meantime, he gives us plenty to chew on. He poses a
series of questions aimed at identifying whether the deep constitutional
contestation I illustrate at the Founding in fact undermines the very concept
of original law. A great deal hangs on what we mean by law here. On the one
hand, I am convinced that the disagreements that followed ratification were
fundamental in nature, cutting to the very core of the Constitution. But, as I
say in my Introduction, these disagreements always fell under the accepted
authority of the Constitution. Everybody acknowledged that, whatever else was
true, it was supreme law. But law seems to pick out something more specific in
Baude’s theory, not just a source of law but a set of methods or principles for
deciphering and elaborating it. I argue that few subjects elicited more
confusion or disagreement at the Founding than interpretive methods, but I wonder
if Baude and I are talking about the same thing when we reference established
rules. And if we are picking out the same thing, perhaps other accepted legal
methods, such as Madison’s account of “liquidation” that Baude has so carefully
delineated, can explain how certain features of the constitutional landscape
became settled over time, and thus how original law originalism and my
historical narrative can work in tandem. Bernadette Meyler raises this exact
possibility, wondering if my book doesn’t offer, as she puts it, “a larger kind
of liquidation narrative.” Perhaps debates in the 1790s, she suggests,
liquidated the Constitution itself, transforming it from an inchoate object
into a fixed, written text. While, in my book, I had only hoped to suggest
that, by 1796, Americans’ distinctive conception of constitutional fixity had
emerged, not that all fundamental issues had been settled, nonetheless Meyler’s
interpretation could indeed support Baude’s conception of originalism which—as
he argues in his sophisticated new article—can and should be wedded to
Madison’s idea of liquidation.

I am
still digesting Baude’s interesting argument. But while I very much take his
and Meyler’s point about it, I wonder about two things. First, how widely
accepted was the idea of liquidation beyond Madison? More critically, how much
acceptance is needed to make it part of the Framers’ law? Second, would most
other originalists take liquidation on board? My hunch is that many of them
would balk at the prospect, not least because incorporating it would require
abandoning certain commitments. Many of them remain wary of adopting the idea
of construction after all, or at least its more radical possibilities.

So it could
well be that Balkin’s and Baude’s versions of originalism (as Balkin indicates
in his own way) are compatible with my account of the Founding while other
forms of the theory are not. Regardless, I eagerly await cashing Baude’s
promissory note to know for sure.

Clearly, then, as my own preliminary thoughts on
some of these matters reveal, there is much more to be understood about early
American constitutionalism and its connections to modern constitutional theory.
I hope that others, as invigorated by this symposium as I have been, will help
tackle some of the questions that this discussion has provoked. With that in
mind, I should end where I began, by sincerely thanking my interlocutors for such
substantive engagement with my work. In responding to their incisive
commentaries, I have gained a much deeper understanding of my book’s larger
implications. I trust other readers have as well.

Jonathan Gienapp is Assistant Professor of History at Stanford University. You can reach him by e-mail at jgienapp at stanford.edu